In re the Termination of the Parent-Child Relationship of K.H., Ne.W., and Ny.W. (Minor Children) and S.W. (Mother), S.W. (Mother) v. Indiana Department of Child Services (mem. dec.) ( 2019 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Jun 25 2019, 9:52 am
court except for the purpose of establishing CLERK
Indiana Supreme Court
the defense of res judicata, collateral Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Megan Shipley Curtis T. Hill, Jr.
Marion County Public Defender Agency Attorney General
Indianapolis, Indiana
Katherine A. Cornelius
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In re the Termination of the June 25, 2019
Parent-Child Relationship of Court of Appeals Case No.
K.H., Ne.W., and Ny.W. (Minor 19A-JT-45
Children) and S.W. (Mother) Appeal from the
S.W. (Mother), Marion Superior Court,
Juvenile Division
Appellant-Respondent,
The Honorable
v. Marilyn Moores, Judge
The Honorable
Larry Bradley, Magistrate
Indiana Department of Child
Services, Trial Court Cause Nos.
49D09-1807-JT-827
Appellee-Petitioner 49D09-1807-JT-830
49D09-1807-JT-831
and
Child Advocates, Inc.,
Court of Appeals of Indiana | Memorandum Decision 19A-JT-45 | June 25, 2019 Page 1 of 11
Appellee-Guardian Ad Litem
Vaidik, Chief Judge.
Case Summary
[1] S.W. (“Mother”) appeals the termination of her parental rights to three of her
children. We affirm.
Facts and Procedural History
[2] The undisputed facts are set forth in the trial court’s order. 1 Mother and R.B.
are the biological parents of Ny.W., born in 2014, and Ne.W., born in 2015.2
Mother has another child—K.H., born in 2011—from a previous relationship
with A.H., who died in 2017.3
1
Mother asserts that the trial court’s findings that Mother “has not been able to maintain employment” and
that she “was receiving unemployment at the time of trial” are “either unsupported or misleading.”
Appellant’s Br. p. 21. That is not so. Mother, herself, testified that at the time of trial she had quit her job,
was receiving unemployment, and was “still looking for employment.” Tr. p. 35. As such, we conclude that
the trial court’s findings regarding Mother’s employment are supported by evidence and not misleading.
Because Mother does not otherwise challenge the findings, we accept them as true. See Maldem v. Arko, 592
N.E.2d 686, 687 (Ind 1992).
2
R.B.’s parental rights were also terminated; however, he does not participate in this appeal and we therefore
limit our narrative to the facts relevant to Mother.
3
Mother also has two teenaged children: A.W., born in 2002, and X.I., born in 2003, who are not the subject
of this appeal. A.W. is in Aunt Tw.’s care under a guardianship, and X.I. is in Aunt Tr.’s care under a
guardianship.
Court of Appeals of Indiana | Memorandum Decision 19A-JT-45 | June 25, 2019 Page 2 of 11
[3] In May 2014, Ohio’s Children Services Board filed a complaint alleging that
K.H. and Ny.W. were dependent and abused children due to a domestic-
violence incident between Mother and A.H. in which Mother suffered
significant injuries. The Ohio complaint also alleged that Ny.W. was born
exposed to marijuana and that Mother tested positive for marijuana and
cocaine at Ny.W.’s birth. Mother admitted using cocaine and marijuana during
her pregnancy with Ny.W. K.H. and Ny.W. were removed from Mother’s care
and placed in foster care because Mother had no housing and was unwilling to
go to a domestic-violence shelter. The Ohio case resulted in reunification, and
K.H. and Ny.W. were returned to Mother. Thereafter, Mother moved to
Indiana with K.H. and Ny.W., and thereafter, Ne.W. was born.
[4] In August 2016, Mother was arrested for Level 5 felony attempted trafficking
with an inmate, Level 6 felony possession of a legend drug, and Class B
misdemeanor possession of marijuana. The Department of Child Services
(DCS) conducted an assessment regarding allegations of abuse and neglect due
to Mother’s arrest, drug use, and failure to enroll her school-aged children in
school. Family Case Manager (FCM) Kristina Clanin met with Mother at the
Delaware County Jail. Mother said that she and K.H., Ny.W., and Ne.W.
(collectively, “Children”) had been evicted from their apartment on July 30 and
that K.H. was staying with her sister, Aunt Tr., and Ny.W. and Ne.W. were
staying with her other sister, Aunt Tw. A few days later, Mother posted bail,
was released from jail, and moved to South Bend to live with an ex-boyfriend.
Court of Appeals of Indiana | Memorandum Decision 19A-JT-45 | June 25, 2019 Page 3 of 11
[5] On August 15, DCS filed a petition alleging that Children were in Need of
Services (CHINS). DCS also requested that K.H. remain placed with Aunt Tr.
and that Ny.W. and Ne.W. remain placed with Aunt Tw. In September, the
trial court adjudicated Children CHINS after Mother admitted the allegations
in DCS’s petition. Thereafter, the trial court issued a dispositional order
requiring Mother to participate in reunification services, including: home-based
case management, a substance-abuse assessment, random drug screens, and
visitation with Children. K.H. remained placed with Aunt Tr., and Ny.W. and
Ne.W. remained placed with Aunt Tw. At some point, Mother moved to
Indianapolis. Then, in August 2017, DCS requested that the CHINS case be
transferred to Marion County because Children’s respective placements and
Mother lived in Marion County. The trial court granted DCS’s request, and the
CHINS case was transferred to Marion Superior Court Juvenile Division.
[6] After Mother moved to Indianapolis, she never obtained adequate housing for
herself or Children. Mother stayed in different hotels for about a month at a
time, she lived in a friend’s apartment for two months, and for about six months
she lived at an address on Udell Street. During this time, Mother sporadically
participated in home-based case management but was inconsistent and did not
progress in obtaining stable housing or managing her budget. Throughout the
CHINS case, Mother repeatedly tested positive for marijuana, cocaine, and
alcohol and sometimes refused to submit to drug screens. In March 2018,
Mother agreed to plead guilty to all three charges in the 2016 criminal case and
was sentenced to thirty months with fifteen months executed through home
Court of Appeals of Indiana | Memorandum Decision 19A-JT-45 | June 25, 2019 Page 4 of 11
detention and fifteen months suspended to probation. She was also ordered to
complete a substance-abuse assessment within thirty days.
[7] On July 5, DCS filed petitions to terminate Mother’s parental rights to
Children, and the trial court set a fact-finding hearing for December 2018.
Before the termination hearing, Mother finally completed a substance-abuse
assessment in October. The substance-abuse assessment recommended twelve
weeks of outpatient treatment. Mother was scheduled to begin outpatient
treatment on October 30, but she did not show up.
[8] On December 3, the trial court held the fact-finding hearing on the termination
petitions. At the time, Mother was on probation for the 2016 criminal case and
awaiting a hearing on probation violations for failing to appear for drug screens,
attend probation appointments, attend outpatient treatment, and verify
employment. See Ex. 81. During the hearing, Mother’s Delaware County
FCM, Mischa Davis, testified that from September 2016 through December
2016, all of Mother’s drug screens, except for one, were positive. See Tr. p. 17.
FCM Davis also said that during the time she worked with Mother, “[Mother]
did a lot of deflecting and blaming placement at times for reasons why things
were not progressing.” Id. at 19. Mother’s home-based caseworker, Dellonda
Richardson, testified that Mother would sometimes miss visits with Children
and gave excuses that “she had to work,” “she was not feeling well,” “she had
some illnesses,” or that “she didn’t have transportation.” Id. at 42. Children’s
Guardian ad Litem, Greg Cannon, testified that “[Mother] doesn’t have stable
housing, employment, continues to either not screen or provide positive drug
Court of Appeals of Indiana | Memorandum Decision 19A-JT-45 | June 25, 2019 Page 5 of 11
screens.” Id. at 47. GAL Cannon said, “We are essentially at the same place
two years since the case opened . . . there has been no progress. . . . There
continue[s] to be issues with positive screens or lack of screening. There
continue[s] to be issues with lack of stable housing, lack of employment, the
inability or unwillingness to meet [Children’s needs].” Id. at 51. GAL Cannon
recommended termination of Mother’s parental rights and that Children be
adopted. See id. at 47.
[9] Mother’s Marion County FCM, Zachary Inman, testified that Mother had not
been compliant with home-based case management or random drug screens
since the case was transferred to Marion County in 2017. FCM Inman also
testified that Mother did not complete a substance-abuse assessment until
October 2018. FCM Inman recommended termination of Mother’s parental
rights and adoption by Children’s current placements. See id. at 59. Mother
testified and said that she was staying at a hotel but had found a house that she
hoped to move into by the end of the week. Mother also said that although she
was currently unemployed, she was going to interview for a job at a gas station.
Finally, Mother said that she was willing to complete the twelve weeks of
outpatient treatment recommended by the substance-abuse assessment. On
December 11, the trial court issued an order terminating Mother’s parental
rights.
[10] Mother now appeals.
Court of Appeals of Indiana | Memorandum Decision 19A-JT-45 | June 25, 2019 Page 6 of 11
Discussion and Decision
[11] When reviewing the termination of parental rights, we do not reweigh the
evidence or judge witness credibility. In re K.T.K., 989 N.E.2d 1225, 1229 (Ind.
2013). Rather, we consider only the evidence and reasonable inferences that
are most favorable to the judgment of the trial court. Id. When a trial court has
entered findings of fact and conclusions, we will not set aside the trial court’s
findings or judgment unless clearly erroneous. Id. To determine whether a
judgment terminating parental rights is clearly erroneous, we review whether
the evidence supports the trial court’s findings and whether the findings support
the judgment. In re V.A., 51 N.E.3d 1140, 1143 (Ind. 2016).
[12] A petition to terminate parental rights must allege, among other things:
(B) that one (1) of the following is true:
(i) There is a reasonable probability that the conditions
that resulted in the child’s removal or the reasons for
placement outside the home of the parents will not be
remedied.
(ii) There is a reasonable probability that the continuation
of the parent-child relationship poses a threat to the well-
being of the child.
(iii) The child has, on two (2) separate occasions, been
adjudicated a child in need of services;
(C) that termination is in the best interests of the child; and
Court of Appeals of Indiana | Memorandum Decision 19A-JT-45 | June 25, 2019 Page 7 of 11
(D) that there is a satisfactory plan for the care and treatment of
the child.
Ind. Code § 31-35-2-4(b)(2). DCS must prove the alleged circumstances by
clear and convincing evidence. In re K.T.K., 989 N.E.2d at 1231. If the court
finds that the allegations in a petition are true, the court shall terminate the
parent-child relationship. Ind. Code § 31-35-2-8(a).
[13] First, Mother contends that there is insufficient evidence to support the trial
court’s conclusion that there is a reasonable probability the conditions resulting
in Children’s removal will not be remedied. In determining whether the
conditions that resulted in a child’s removal will not be remedied, the trial court
engages in a two-step analysis. First, the trial court must ascertain what
conditions led to the child’s placement and retention in foster care. In re K.T.K.,
989 N.E.2d at 1231. Second, the trial court determines whether there is a
reasonable probability that those conditions will not be remedied. Id. “The
trial court must consider a parent’s habitual pattern of conduct to determine
whether there is a substantial probability of future neglect or deprivation.” Id.
[14] Here, Mother failed to demonstrate that she was any closer to providing
Children a safe, stable home than she was at the beginning of the CHINS case.
The evidence shows that Mother was incarcerated when Children were placed
with Aunt Tr. and Aunt Tw., she did not comply with home-based case
management, she did not comply with random drug screens, and in December
2018 she was alleged to have violated probation by failing to appear for drug
screens, failing to attend probation appointments, failing to attend outpatient
Court of Appeals of Indiana | Memorandum Decision 19A-JT-45 | June 25, 2019 Page 8 of 11
treatment, and failing to verify employment. The trial court’s unchallenged
findings on this issue support its conclusion that there is a reasonable
probability the conditions resulting in Children’s removal will not be remedied.
See, e.g., In re E.M., 4 N.E.3d 636, 644 (Ind. 2014) (findings regarding father’s
continued non-compliance with services support trial court’s conclusion that
conditions resulting in children’s removal from father’s care would not be
remedied). To the extent that Mother argues that she recently attempted to
engage in services by completing a substance-abuse assessment in October
2018, we commend her for taking the first step to free herself from addiction.
However, the trial court was well within its discretion to disregard the efforts
Mother made only shortly before termination and to weigh more heavily her
history of conduct. See In re K.T.K., 989 N.E.2d at 1234. Accordingly, the trial
court did not err when it concluded that there is a reasonable probability that
the conditions resulting in removal will not be remedied.4
[15] Next, Mother argues that the trial court erred in concluding that termination is
in Children’s best interests. To determine what is in a child’s best interests, the
trial court is required to look to the totality of the evidence. In re A.D.S., 987
N.E.2d 1150, 1158 (Ind. Ct. App. 2013), trans. denied. In doing so, the trial
4
Because we affirm the trial court’s conclusion that there is a reasonable probability the conditions resulting
in Children’s removal will not be remedied, we do not address its alternate conclusion that there is a
reasonable probability that the continuation of the parent-child relationship poses a threat to the well-being of
Children. See In re A.G., 45 N.E.3d 471, 478 (Ind. Ct. App. 2015) (Indiana Code section 31-35-2-4(b)(2)(B) is
written in the disjunctive and requires the trial court to find only one of the two requirements of subsection
(B) has been established by clear and convincing evidence), trans. denied.
Court of Appeals of Indiana | Memorandum Decision 19A-JT-45 | June 25, 2019 Page 9 of 11
court must subordinate the interest of the parent to those of the child. Id. The
trial court need not wait until a child is irreversibly harmed before terminating
the parent-child relationship. Id. We have previously held that
recommendations by both the DCS case manager and GAL to terminate
parental rights, in addition to evidence that the conditions resulting in removal
will not be remedied, is sufficient to show by clear and convincing evidence that
termination is in the child’s best interests. Id. at 1158-59.
[16] Here, in addition to Mother’s substance-abuse and housing issues that
necessitated DCS involvement and her complete lack of progress since then,
both GAL Cannon and FCM Inman testified that terminating Mother’s
parental rights would serve the best interests of Children. See Tr. pp. 47, 59.
Furthermore, the trial court found that Mother “appears to lay blame on others,
and makes excuses, for her poor choices.” Appellant’s App. Vol. II p. 93
(Finding 26); see also In re A.P., 981 N.E.2d 75, 82-83 (Ind. Ct. App. 2012).
Meanwhile, the trial court found that Children were happy in their pre-adoptive
placements and “clearly bonded with their caregivers.” Appellant’s App. Vol.
II p. 93 (Finding 34); see also In re K.T.K., 989 N.E.2d at 1230 (finding that
“children have an interest in terminating parental rights that prevent adoption
and inhibit establishing secure, stable, long-term, continuous relationships.”).
Accordingly, the trial court did not err when it concluded that termination is in
Children’s best interests.
[17] Finally, Mother challenges the trial court’s conclusion that there is a
satisfactory plan for Children’s care and treatment. DCS’s plan need not be
Court of Appeals of Indiana | Memorandum Decision 19A-JT-45 | June 25, 2019 Page 10 of 11
detailed, so long as it offers a general sense of the direction the child will go
after the parent-child relationship is terminated. Lang v. Starke Cty. Office of
Family & Children, 861 N.E.2d 366, 374 (Ind. Ct. App. 2007), trans. denied.
Adoption is generally a satisfactory plan, even when a potential adoptive family
has not been identified. Id. at 375. Part of the reason for this is that it is within
the authority of the adoption court, not the termination court, to decide
whether an adoptive placement is appropriate. In re A.S., 17 N.E.3d 994, 1007
(Ind. Ct. App. 2014), trans. denied.
[18] Here, DCS’s plan is adoption. FCM Inman and GAL Cannon agreed with this
plan, and Aunt Tr. was willing to adopt K.H. and Aunt Tw. was willing to
adopt Ne.W. and Ny.W. Mother contends that adoption of Ne.W. and Ny.W.
by Aunt Tw. is not a satisfactory plan because she alleges that Aunt Tw. is
married to a woman whose parental rights to her own children have been
terminated. Regardless of whether those allegations are true or false, it is the
adoption court, not the termination court, who will decide who adopts Ne.W.
and Ny.W. Therefore, the trial court did not err in concluding that adoption is
a satisfactory plan for Children.
[19] Affirmed.
Kirsch, J., and Altice, J., concur.
Court of Appeals of Indiana | Memorandum Decision 19A-JT-45 | June 25, 2019 Page 11 of 11